U.S. v. Comprehensive Drug Testing and The List of 97

Last week, I had a column on SI.com on United States v. Comprehensive Drug Testing, where the United States Court of Appeals for the Ninth Circuit held that the federal government's seizure of computer files which implicated 104 major league players as steroids users violated those players' Forth Amendment rights (Howard discussed this case as well). The names of 97 of those players remain unknown, while through leaks, we now know that Alex Rodriguez, Sammy Sosa, David Ortiz, Manny Ramriez and a few others are on it.

Here is an excerpt from my column.

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MLBPA could eventually seek a court order that would enable it to divulge the remaining names. The MLBPA could reason that while disclosure might harm the interests of 97 players, it would serve the best interests of the far more numerous number of other MLB players, who would be cleared from suspicion. MLBPA, however, would pursue such a strategy under the peril of being sued by the 97 named players for breach of fiduciary duties. As a labor union, the MLBPA and its officials owe duties of trust and competence to each of the players. Releasing the names would undoubtedly harm the reputations of the named players and possibly jeopardize their player contracts and endorsement deals. Named players could also file a grievance with the National Labor Relations Board.

Unlike the MLBPA, Major League Baseball is not a party to the litigation. If MLB has the list, it could theoretically release it, but doing so would likely trigger a legal action commenced by the MLPBA. As part of the 2003 testing, MLB agreed to an arrangement whereby the players' names would be kept confidential and any records containing their names would be destroyed. MLB's willingness to partake in such an arrangement is significant because the collective bargaining agreement between MLB and the MLBPA imposes duties of confidentially. Although commissioner Bud Selig has not expressed a desire to release the list, the MLBPA would, in all likelihood, immediately file a grievance with the National Labor Relations Board should he do so. It may also argue that the court sealing of the names should effectively extend to MLB, since it co-coordinated the survey testing.

Commissioner Selig could nonetheless argue that the "best interests of the game" authority, as vaguely contained in MLB's constitution (a document originally drafted in 1921 and not one collectively bargained with the MLBPA), accords him sufficient authority to release the remaining names. In Selig's defense, the list has embarrassed baseball and prompted unwanted speculation as to who might be on it. Even worse for Selig, the list returns to the public spotlight every time a name or two is leaked. Selig might understandably feel that the only way the game can move on from the Steroid Era in Baseball would be to release the entire list, a move recently endorsed by Hall of Famer Hank Aaron.

In releasing the names, Selig would encounter a problem: the collectively-bargained CBA likely trumps baseball's constitution in this context. Expect the NLRB or possibly a court to dimly view any use of the best interests of the game clause to justify releasing the names, particularly since the list remains otherwise sealed and also because, according to the Ninth Circuit, the list should never have been obtained by federal agents.

The remaining 97 names may nonetheless become known through leaks. It appears that attorneys familiar with the list, or former law clerks or staff of those attorneys, are selectively divulging names to the media. By doing so, they violate both a court order and their professional and ethical duties. If caught, the leakers would be subject criminal charges for contempt of a court order and the loss of their license to practice law (or, if they are law clerks, the likely loss of the chance of being certified to practice law in any state). While the 104 players who purportedly tested positive damaged the game of baseball, attorneys and law clerks who leak names inflict the same, if not more, damage upon the practice of law and our system of justice.

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To read the rest, click here. For additional commentary, see Garey Reiss' piece in the Wall Street's Journal's Daily Fix.

No Deterrence? NCAA Rules and the Men's Basketball and Football Players who Don't Follow them

San Diego Union-Tribune columnist Tim Sullivan has a piece on star NCAA athletes who accept gifts from would-be agents (e.g., Reggie Bush; O.J. Mayo) or who otherwise break other NCAA rules (e.g., Derrick Rose/SAT exam) and how, practically, little can be done to stop that from happening. He interviews me for the column, which is excerpted below..

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[Derrick] Rose has adopted the Reggie Bush defense, which is to take the money and run from accountability. Having made his fortune with the Chicago Bulls, Rose has A) declined to cooperate with NCAA investigators and B) failed to account for the discrepancies that caused his SAT test to be invalidated.

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This is the same evasive and suspicious strategy [Reggie] Bush employed — and continues to employ — when confronted with questions about his cash flow and his parents' living arrangements during his last year at USC.

“I would love to talk about it, but now is not the time,” Bush said on April 27, 2006, two days before the NFL Draft. “There's a time and a place for everything and this isn't one of them.”

Bush said that day he had done nothing wrong and promised to address the allegations, but 40 months later that time and place have yet to be identified. Though the inability to question Bush directly has frustrated the NCAA, more recent allegations involving one-and-done basketball star O.J. Mayo have broadened the scope of the investigation and increased the likelihood that the Trojans will ultimately be sanctioned for a “lack of institutional control.”

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Likewise, any penalties USC may receive as a result of Bush's and Mayo's alleged improprieties will be administered long after they have left campus. Unless the Internal Revenue Service decides to start auditing the tax returns of professional athletes in search of undeclared undergraduate income, there's every reason to believe that crime does pay on campus.

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Michael McCann, an associate professor at Vermont Law School, says the age limits enacted by the NBA and the NFL “create incentives” for short-term students without providing an adequate disincentive to rules-breaking.

“By the time allegations come to the surface,” McCann says, “the player will have already left and there's no way of holding him accountable.”

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“If the allegations against him are true, I think O.J. Mayo took the money because maybe he thought he should have been in the NBA,” McCann says. “Had he pursued any profession other than basketball or football, he would have been able to be a professional.”

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To read the rest, click here. For a related post, see Alan Milstein's "Reggie Bush Sweepstakes" in which Alan argued that the NFL's college draft is a monopsony (the NFL controls the buying of talent not the selling: they are the only source to which eligible players may sell their services).

Commonwealth of Kentucky v. David Jason Stinson: Should Coaches be held Criminally Liable for Athletes' Deaths?

I have a column on SI.com concerning the first case in which a high school coach has been criminally charged with a player's death. The trial will begin on Monday. Here's an excerpt of the column:

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Former Pleasure Ridge High School (Louisville, Ky.) football coach Jason Stinson faces charges for reckless homicide and wanton endangerment, felonies which each carry maximum five-year prison sentences, for the August 2008 death of sophomore offensive lineman Max Gilpin. Gilpin collapsed at the end of a series of wind sprints held in allegedly 94-degree temperatures. When taken to the emergency room, Gilpin's body temperature was reportedly 107 degrees. Gilpin died three days later.

Other facts remain in dispute and will be contested during Stinson's trial, which is scheduled to begin on Monday. According to prosecutors, Stinson, despite having been trained on the dangers of heat-related illnesses, subjected Gilpin to "barbaric conditioning" in the form of the sprints, which Stinson allegedly used to punish and motivate underperforming players. There are also conflicting reports as to whether, and to what extent, Stinson allowed players to drink water during certain moments of practice.

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. . . [I]f Stinson is convicted or pleads guilty to a lesser offense that carries a prison sentence, his case could produce major changes in high school football and high school sports in general. It could, for instance, compel high school coaches and school districts to treat players with much more care, and to provide them with added safeguards, such as ensuring that trainers are on-hand at all times, that coaches have undergone extensive sensitivity training, and that purportedly harsh practice conditions (e.g., denying a player water at any time; ordering sprints in hot and humid conditions) be eliminated. Practices could thus become more safe though also more regulated and potentially more costly, including for the taxpayers who fund local sports.

Stinson's case may also force coaches and school districts to condition the playing of sports on players' passage of rigorous, possibly invasive health tests. While players are already subject to physicals, the prospect of criminal sanction and prison time accompanying the death of a player may spur coaches to demand greater certainty of players' physical health. In that same vein, the profession of high school football coaching may take a hit. If a player's death on the practice field can lead to a coach facing criminal prosecution, the profession suddenly becomes a much less attractive one. The added possibility of tort liability under a wrongful death civil claim only amplifies that point.

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To read the rest, click here.

Ninth Circuit strikes down seizure of BALCO names

The en banc Ninth Circuit today held that government investigators violated the Fourth Amendment when, during a raid on BALCO, they seized the names of 104 MLB players who tested positive for steroids, while acting on a warrant targeted at only ten players. (H/T: Jon Pessah).

The opinion is 63 pages long (I have not had a chance to read it yet); the majority is by Chief Judge Alex Kozinski, one of the sharpest judicial minds on the federal bench and someone on the libertarian/conservative side. There are two partial concurrences/dissents and one full dissent. I would predict Supreme Court review, just because of the high-profile nature of the case.

Update:

Orin Kerr has a series of posts on the case at the Volokh Conspiracy. Orin knows the Fourth Amendment better than most people, so it is worth a read.

Instant Replay and Appellate Review

Chad Oldfather (Marquette) and Matthew Fernholz (J.D. Candidate at Marquette) have posted Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review to SSRN. The paper considers analogies and distinctions between replay review (for which I have expressed my distaste) and judicial appeals. Here is the abstract:

During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropriateness of the Chief Justice’s analogy), but also to conduct something of a comparative analysis and thereby to use it as a vehicle for illustrating some general characteristics of a process of decisional review.

Dryer v. NFL: Retired NFL Players Sue for Use of Identities

As detailed by Nooman Merchant of the Associated Press, a group of retired NFL players are suing the NFL under the Lanham Act over the NFL's use (and particularly NFL Film's use) of their identities. Merchant interviewed me for the story. Here is an excerpt and my comments:

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NFL Hall of Famer Elvin Bethea [#65 above, a defensive lineman who played for the Houston Oilers and recorded a lot of sacks while doing so] and five other players sued the league for using their names and images for profit without their permission.

The players filed a class-action lawsuit Thursday in federal court in Minneapolis. The lawsuit accuses the NFL of exploiting retired players' identities in films, highlight reels and memorabilia to market the league's "glory days" without compensating the players.

"It's really turned into a big property," said Bob Stein, a lawyer for the players.

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Michael McCann, a sports law expert and professor at Vermont Law School, said the lawsuit was similar to a complaint filed last month by former UCLA basketball player Ed O'Bannon against the NCAA. O'Bannon is seeking unspecified damages for the use of former players' likenesses in video games and other material. [O'Bannon v. NCAA]

In this case, McCann said, the NFL would likely refer to its collective bargaining agreement with the NFLPA. The player contract in that agreement gives publicity rights to the league.

"Whether there's sufficient language in there affecting retired players remains to be seen," McCann said.

In June, a group of more than 2,000 retirees won a $26.25 million settlement with the NFLPA over the use of their likenesses in video games, trading cards and other sports products. The retirees sued in 2007, accusing the union of failing to actively pursue marketing deals for such products.

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To read the complaint for Dryer v. NFL, click here.

More Commercialization of the Student-Athlete

Sports Business Daily, citing timteblog.com, reports that the Fort Myers Miracle minor-league baseball team is holding a "What Would Tim Tebow Do?" promotion on Wednesday night during its game against the St. Lucie Mets (See Tebow: The Minor-League Baseball Gimmick). According to timteblog.com, the park is going to use Tim Tebow's name and/or indentity in the following events:

• Free promise rings for everyone entering the stadium.
• First pitch will be a "jump pass."
• Team manager and gameday staff will deal with problems by asking themselves "What Would Tebow Do?"
• Guy named "Tim Tebow" (not THAT Tim Tebow) will try to walk on some water.
• Faith healer on premises (bonus: if a Miracle fielder makes an error during the game all fans in attendance get a ticket to the regular-season finale next weekend -- really?)
• Plenty of jumbotron replaying of "The Promise."
• If you're wearing college gear at the game -- presumably Florida stuff -- you could win tickets to the Florida-Arkansas game.